STATE OF NEW JERSEY v. JARRELL PAGE

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4264-19T4

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

JARRELL PAGE,

     Defendant-Appellant.
________________________

                   Submitted October 15, 2020 – Decided November 17, 2020

                   Before Judges Accurso and Vernoia.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Mercer County, Indictment No. 11-02-
                   0207.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Haley E. Farrell, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Angelo J. Onofri, Mercer County Prosecutor, attorney
                   for respondent (Laura Sunyak, Assistant Prosecutor,
                   of counsel and on the brief).

PER CURIAM
      Defendant Jarrell Page pleaded guilty in 2012 to first-degree robbery of a

gas station attendant and was sentenced to six years in prison, subject to the

periods of parole ineligibility and supervision required by the No Early Release

Act (NERA),  N.J.S.A. 2C:43-7.2. He was paroled in 2016 but reincarcerated

eighteen months later on a parole violation. He is now at Northern State Prison

with a maximum release date of January 14, 2021. In June 2020, following the

outbreak of the COVID-19 pandemic, Page filed a motion under Rule 3:21-

10(b)(2), seeking release from custody, or, alternatively, judicial furlough

pursuant to State v. Boone,  262 N.J. Super. 220 (Law Div. 1992), or Executive

Order 124.    Although only thirty-five years old, he claims his high blood

pressure and obesity place him at a heightened risk of serious illness or death

should he contract the virus.

      Judge Lydon denied Page's motion without an evidentiary hearing. In a

clear and comprehensive written opinion, the judge found Page failed to satisfy

the essential predicate for the "extraordinary relief to a prisoner" Rule 3:21-

10(b)(2) affords, namely, "proof of the serious nature of the defendant's illness

and the deleterious effect of incarceration on the prisoner's health." State v.

Priester,  99 N.J. 123, 135 (1985). Acknowledging the pandemic represents

changed circumstances under the Rule, In re Request to Modify Prison

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Sentences, Expedite Parole Hearings, & Identify Vulnerable Prisoners ,  242 N.J.
 357, 379 (2020), Judge Lydon found Page "does not fall within the [Centers for

Disease Control's] cohort of individuals who face a higher risk of suffering a

serious illness from the virus." Specifically, the judge found Page's claimed

body mass index of 31.9 does not present "a serious underlying medical

condition," and his prison medical records disclose no diagnosed serious illness.

The judge further noted Page was not suffering from Covid-19, and found he

had not shown that his incarceration has adversely affected his medical

condition.   Additionally, the judge found Page had not demonstrated "the

prison's medical resources are inadequate to treat his obesity, hypertension, or

potential complications" should he contract the virus.

      Turning to the other factors the Supreme Court in Priester directed trial

courts to consider, "the nature and severity of the crime, the severity of the

sentence, the criminal record of the defendant, the risk to the public if the

defendant is released, and the defendant's role in bringing about his current state

of health," Priester,  99 N.J. at 137, Judge Lydon found only the last favored

release. Although Page is obviously not responsible for the virus or his current

medical condition, the judge found both the nature and severity of defendant's

crime, first-degree robbery, "concerning." Page and a co-defendant pointed a


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                                        3
gun at an unarmed gas station attendant, demanding money. After the man

turned over $100, the two punched him with their fists and hit him in the back

of the head with the gun before fleeing.

      The judge found those facts, and Page's long criminal record, dating back

to when he was a juvenile, demonstrated that Page presents a risk to public

safety, noting he was being supervised as part of the pre-trial intervention

program when he committed the robbery and was currently incarcerated for a

parole violation. Notwithstanding the change in circumstances brought about

by the virus, the judge found no entitlement to a change in custody for Page. He

did not show he suffers from any serious illness or had experienced any

deleterious effect on his health, and a weighing of the other Priester factors

militated against release. 1

      Page appeals, arguing he was entitled to a hearing on his motion, and that

he meets the legal standard for relief under Priester. We disagree and affirm

essentially for the reasons expressed by Judge Lydon. Although determining



1
  The judge also denied Page a furlough under Boone, finding no demonstrated
need for medical treatment for any serious ailment. The judge denied early
release pursuant to Executive Order 124, as Page's conviction of a NERA
offense rendered him disqualified for such relief, which could only be granted
by the Commissioner of the Department of Corrections in any event. Page has
not appealed from those rulings.
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                                       4
that the pandemic amounted to a change in circumstances under Rule 3:21-

10(b)(2), thereby permitting individual defendants to apply for release, the

Supreme Court in Request to Modify Prison Sentences,  242 N.J. at 378-79, did

not otherwise relax the standard of the Rule, noting inmates must present

evidence of a "a physical ailment or weakness — and the increased risk of harm

incarceration poses to that condition," and that "[a] generalized fear of

contracting an illness is not enough." Nor did the Court signal any retreat from

its admonition in Priester that "the Rule must be applied prudently, sparingly,

and cautiously."  99 N.J. at 135. Having reviewed the record, we are satisfied

the judge did not abuse his discretion in denying Page an evidentiary hearing,

see id. at 139, or in applying the Rule to the facts Page presented on the motion,

see State v. Tumminello,  70 N.J. 187, 193 (1976).

      Affirmed.




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